Mark Twain said, “It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.” It is always awkward when the court benchslaps your legal argument.

There are useful lessons here for all of us, not just State Farm. First, when your client is relying on the terms of a contract, note its details before you say something you will wish you hadn’t. Second, be careful with hyperbole and sarcasm when writing a brief for an appellate court.

I agree with Mr. Patrice. The opening paragraph of the Sixth Circuit Court’s opinion is worth repeating. -CCE

There are good reasons not to call an opponent’s argument ‘ridiculous,’ which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, ‘the better practice is usually to lay out the facts and let the court reach its own conclusions.’ But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

If you work or live anywhere that uses ParkMobile as a replacement for old-fashioned parking meters, you are going to love this. Imagine the ability to pay, add time to your parking meter, or even reserve your parking spot. Mr. Richardson’s post provides more interesting details that you don’t want to miss.

I have already looked and yes, ParkMobile is in my state and on the street where I work. With this app, you can find, reserve, and pay for your parking spot in 350 cities. Look for your parking spot now at https://parkmobile.io/locations. Sweet. -CCE

What is hyperbole anyway? Here’s a quick example. How would you respond as opposing counsel to a statement that there are “countless obvious examples” of the opposing party’s errors? Perhaps, something like, “Oh really?” “Countless and obvious, you say? How interesting that you did not name anything specific. We did what any reasonable company would do in a similar situation.” And, then you must explain what you meant all over again – if you get the opportunity.

Simply put, hyperbole is deliberate exaggeration. Although often misguidedly used for emphasis, rhetoric, or even sarcasm, you invite an attack to prove your statement. At best, you may have illustrated that the other side’s behavior is outlandish. At worst, you have lost credibility with the court because you are unable to back up your statement with hard facts. Never imply a promise that you cannot deliver.

This is a good time to remember that your writing is more persuasive when you show, don’t tell. If the opposing party has behaved beyond the pale, telling the court or the jury what happened (who did what to whom and why) will be more persuasive than rhetorical outrage.

You will find in legal blogs on the use of hyperbole. This post is one of my favorites. As always, there is the bonus of hyperlinks to posts on similar subjects at the bottom of the page. -CCE

This is the current and official copy of the Justice Manual (JM). The JM was previously known as the United States Attorneys’ Manual (USAM). It was comprehensively revised and renamed in 2018. Sections may be updated periodically. In general, the date of last revision will be noted at the end of each section. For prior versions of the USAM, visit the USAM Archive.

Take your time with this one. There is a lot of information to digest. -CCE

The U.S. Supreme Court approved amendments to the Federal Rules of Civil Procedure on April 26, 2018. The new amendments go into effect on December 1, 2018, which is now only a few months away. As usual, new text is underlined; deleted text is struck through.

When you review the amendments, I recommend taking the time to read the notes that explain the reasons for the changes. As for the amendment to Rule 5. I suggest that, if you serve a complaint by e-mail, use the email option to show delivery to and/or read receipt by the recipient.

This link will take you to the revised rules, but it is also a free resource that provides access to all the Federal Rules of Civil Procedure. For both reasons, worth a bookmark. – CCE

Ken Adams has made a “standing offer.” If you send him one of your contract templates, he will take the time to edit it.

Wow. Even if you are the best contract writer in the world, why wouldn’t you take Mr. Adams’ up on such a generous offer? Opportunities such as this do not come along every day. Thank you, Mr. Adams! -CCE

States have already made the leap to provide free access to cases on their judges’ dockets. You can read all documents filed by the parties and the assigned judge, the date of any hearing or trial date and their outcome, and access every document (for the most part) filed with the all state courts. Not so with the federal district, appellate, or bankruptcy courts. Your only access is through PACER, a completely different system.

The proposed Electronic Court Records Reform Act is long overdue and removes the fee to access these documents. -CCE

Let’s go with the premise that, whenever a supervisor gives you an assignment, you are familiar with office procedures, court rules, or whatever basics you need to perform the work. This post has two sections: (1) questions to ask before starting an assignment, and (2) questions to ask after completion.

Even if you already know some or all of the answers to the first, asking the second set of questions will help you get valuable feedback to improve your performance. – CCE

“[A]t the Beginning of a Project:

When would you like me to complete this project?

Describe what you have been told to do and then ask: Have I missed anything?

Are you an e-filing superstar or novice? Regardless of your court jurisdiction, Smokeball has provided tips that cross jurisdictional lines. These are more common-sense suggestions rather than tips specific to a particular court, and worth your time. Smokeball includes a commercial for its product. Even if Smokeball is not your cup of tea, the underlying premise is a good one. -CCE

With the advent of e-filing comes new challenges and opportunities for mistakes. Some e-filling mistakes are caused by poor planning, clunky software or even something as simple as a setting in your inbox. To help you stay on top of your e-filling, here are five e-filing tips to help you avoid e-filing pitfalls.

‘[A] computer lets you make more mistakes faster than any invention in human history – with the possible exception of handguns and tequila.’[1]

Use a Separate and Distinct E-Filing Email Address

Did you know that the average person receives about 120 emails everyday?

If you are like most people, you have to sift through the clutter to get to emails that are important. But, because you get so many emails everyday, you may overlook or mistakenly delete an important email.

With mandatory e-filing, every attorney is required to provide a primary email address and up to two secondary email addresses on all appearances and documents filed with the court.[2] This means that not only will you electronically file documents, you will also receive documents filed by other parties via email.

As you list your primary email address on your appearance, don’t use your personal email address as your primary address. Create a separate email address for e-filing to help you stay organized. A dedicated email address for e-filing will ensure that all notices are sent to one central address. This allows other members of your firm to access emails and look for notices from the courts specifically for your cases. Also, when you are out of the office, others can cover and look out for any actions taken on cases.

Everyday you receive junk or spam mail that clogs up your mailbox. Because of the countless number of junk mail we receive each day, our mail servers have filters that uses a set of protocols to determine what is junk and what are legitimate emails. However, there are times that legitimate emails are caught by an aggressive filter. For attorneys, that could potentially be an e-filling.

To ensure that you don’t miss a notice from the court or opposing counsel, make sure to check your junk mail folders. Also, don’t set your junk mail folder to delete automatically. You don’t want to make a mistake of missing a deadline because it was stuck in the junk mail folder and then auto-deleted.

Whitelist Important Senders

A whitelist is a list of email addresses or domain names that you provide that allows your junk mail or spam filter will allow through into your inbox. I recommend that you put the domain names of the courts and clerk’s offices on your whitelist. Also, enter opposing counsels and key clients on the whitelist to ensure that emails are not blocked. It’s important to keep your whitelist updated as people and organizations change email addresses or domain names.

Check the Online Court Docket

It’s easy to rely on emails and notifications for new events on your cases, but don’t rely on emails to stay on top of your cases. It’s still a best practice to check the court’s docket online to ensure that no new action or orders were entered. There may be instances where emails were blocked, sent to the wrong address, or other technical glitches causing you to not receive a notice. Create a protocol to check the court’s online docket every 2 to 3 weeks on all your active cases.

Don’t Wait ’till the Last Minute

Supreme Court Rule 9(d) provides that you have until midnight to electronically file a document and still have it considered as filed that same day. However, don’t wait till the last minute to file a document. E-Filing is a new process and there may be technical issues that you will encounter at the last minute. You may lose your internet connection, lose power, have computer issues, etc., which can cause you to miss your deadline.

Make sure your computer is up to date and have your anti-virus updated. Use a legal practice management system to ensure your data is backed up and you can collaborate with other members of your firm just in case something goes wrong with your computer.

E-filing with Legal Practice Management Software

It’s more important with e-filing to have all your case and critical data in a digital file, where you store all documents, emails, and other important case details in one central location. Enter Smokeball.

Smokeball not only allows you to keep all your information in one central place, you have access to over 14,000 automated legal forms, the most comprehensive automated legal forms library in the industry.

For attorneys in Illinois, Smokeball’s integration with InfoTrack allows you e-file directly from your practice management software. To learn more, see the software for yourself.

In the legal profession, multi-tasking is considered a required skill for attorneys and staff alike. Depending on the project, there are times when I want – or need – a chunk of uninterrupted time to perform that particular task. At other times, I can easily juggle several things at once. It depends on the task and how many distractions are competing for my attention.

There is an opposite point of view that multi-tasking is a myth. Rather than multi-tasking, they advocate that focusing on one thing at a time is the most efficient use of your time.

This difference of opinion about multi-tasking is why this post caught my eye. We all have days when we wonder whether our brain cells decided to commit mass suicide without warning us. Conversely, there are times when we are solidly in the zone and knock out one assignment after the other.

Professor Fruehwald’s post tweaked my curiosity about a person’s short-term memory and how it works, as well as the title of Chris Bailey’s book, “Hyperfocus: How to Be More Productive in a World of Distraction.” Looks like an excellent read. -CCE

One of the most important aspects of being an effective learner is attention focusing. Short-term memory has only about 4 to 7 slots, and an effective learner focuses her attention on the task at hand. Chris Bailey has just published a self-help book on attention focusing for a popular audience: Hyperfocus: How to Be More Productive in a World of Distraction (2018).

From the New York Times:

‘Hyperfocus’ teaches readers to control their limited capacity to focus on and process things in the moment, which he calls our ‘attentional space.’ It turns out our brain’s scratchpad is pretty small and can only hold a handful of tasks at a time. When one of those tasks is complex — like putting together a business proposal or taking care of a toddler — that number dwindles down to one or two.

Normally, an insurance company has no duty to defend a contractor under a construction general liability (“CGL”) policy against breach-of-contract and negligence allegations. Not this time. This time, in the Western District of Texas, the insureds won against the insurance company. The court held the breach of contract exclusion did not apply because the contractor’s subcontractor, not the contractor, could be responsible for a construction defect.

A municipality hired the general contractor to construct a sports complex that included a swimming pool, baseball and softball fields, and parking lots. The contractor hired two subcontractors – one to design and build the swimming pool, and another to do all the dirt work, grading, and storm drainage for the entire complex.

At the beginning of 2017, a contractor employee saw cracks beginning the pool and parking lot after completion of the pool and most of the sports complex. The contractor put the pool subcontractor on notice to fix the cracks. About three months later, a contractor employee noticed the cracks were worse. The contractor and the pool subcontractor were unable to agree on how to fix the pool. By the end of the year, more cracks and other defects had appeared. The city, contractor, and subcontractors could not agree on how to solve these problems.

The city sued the contractor for breach of contract and negligence. The contractor notified its insurance company and, relying on its CGL policy, asked its insurance company to defend it against the city’s lawsuit. The insurance company refused. It sued the contractor requesting a judgment declaring that it had no duty to defend the contractor in the lawsuit filed by the city based on the CGL exclusion clause.

The insurance company relied on language in its policy that specifically denied coverage to the contractor for property damage caused by the contractor. In it its lawsuit against the contractor, the city had specifically alleged that work performed by the contractorand its subcontractors was defective. The insurance policy’s exclusion did not apply to work performed by a subcontractor. The court held that, because the city’s allegations included the possibility that subcontractor alone had created the defects at issue in the city’s lawsuit, the insurance company had a duty to defend the contractor.

The first sentence includes the Oxford comma, sometimes called the “serial comma.” If you do not already use it, you may ask why bother? It is about clarity versus ambiguity. In this case, the Oxford comma made all the difference.

“In this class action lawsuit, drivers for Oakhurst Dairy sued the company over its failure to grant them overtime pay. According to Maine law, workers are entitled to 1.5 times their normal pay for any hours worked over 40 per week. However, there are exemptions to this rule. Specifically, companies don’t need to pay overtime for the following activities:

Note the end of the opening line, where there is no comma before the ’or.’”

The employer argued the employees did not qualify for overtime because “packing for shipment” and “distribution” were two different things. The employees argued that, without the comma before the “or,” they should be paid for both. The court agreed with the employees. The language determining overtime pay was ambiguous because of the missing comma.

“Without that comma, as the judge maintained, this distinction was not clearcut:

Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law’s protection. But, as it happens, there is no serial comma to be found in the exemption’s list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.”

How much did this missing comma cost the employer? Approximately $10 million. Proper punctuation matters, especially in legal writing.

The basic tenet of good legal writing is to put the subject and verb together, place modifiers next to what they modify, and use the active voice. The passive voice causes confusion rather than clarity because it fails to communicate the writer’s intention. There is only one valid use of the passive voice – when the actor is unknown or unimportant.

Every year for the last decade, the ABA has solicited votes for nominations for the favorite law-related blog. Those chosen based on your nominations become the Web 100 for that year. Over the years, it’s expanded to include other law-related technology, and added its own Blawg Hall of Fame. It’s definitely worth a look to rediscover old favorites and others goodies you might have missed.

It’s that time of year again. Nominate your favorite law-related blog, podcast, social media feed, app, or interactive feature for recognition in this year of the ABA’s Web 100. You will find the nomination form at the link below. -CCE

“The suite consists of new and enhanced products fueled by smart content from Lexis Advance and the strategic acquisitions of Lex Machina, Intelligize and Ravel Law, and integrates the most powerful technologies in the legal space, including machine learning, artificial intelligence (A.I.) and visualization tools.”

Interestingly, Thomson Reuter launched Westlaw Edge, West Search Plus, Analytics, Enhanced Citator and More, on the same day as the Lexis Advance launch. Joe Hodnicki believes that Westlaw Edge is more powerful and stiff competition to Lexis Advance. Those of you who use these products, what do you think? -CCE

I have paralegal friends who have had special training and received credentials for their knowledge of e-discovery. I also have paralegal friends who rarely run across the same kind of challenge. If these terms are common to you, I tip my hat. If not, I hope this helps. Thanks, Jenny, for sharing. -CCE

Every year, The Capitol Steps perform a 4th of July show. If you are not familiar with The Capitol Steps, it’s political musical satire. This tradition is shared by similar groups around the country in law schools and bar associations, such as the Bar & Grill Singers in Austin: https://www.singers.com/group/Bar-Grill-Singers/ (my personal favorite, “Appointed Forever“). It’s well written, well performed, and hilarious.

I love the Plain Language Committee of the Michigan Bar Association. Every one of its articles in the Michigan Bar Journal is a legal writing gem. In this article, Judge Lebovits explains why this is your goal and how to do it:

[T]he hallmark of good legal writing is that an intelligent layperson will understand it on the first read.

As Ms. Needham describes it, “[f]or the unfamiliar, benchslap originally referred to one judge snarking at another, but now refers to any time a member of the bench crushes an attorney with wit, rage, or both.” It is also an excellent example of what not to do. -CCE

Susan Nevelow Mart is a law professor at the University of Colorado’s Law School. Her article has earned significant attention and recognition, and for good reason.

Most lawyers and paralegals learn legal research using Westlaw and Lexis, with an emphasis on using headnotes to research relevant law. Because humans write the headnotes and the search algorithms, there is a considerable variation in the results in our legal research.

[W]hen comparing the top ten results for the same search entered into the same jurisdictional case database in Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel, and Westlaw, the results are a remarkable testament to the variability of human problem solving. There is hardly any overlap in the cases that appear in the top ten results returned by each database.

Hardly any overlap? Imagine how this affects cases argued by the parties and decided by the courts. But, there’s more. The percentage of relevant sources differs for all providers.

One of the most surprising results was the clustering among the databases in terms of the percentage of relevant results. The oldest database providers, Westlaw and Lexis, had the highest percentages of relevant results, at 67% and 57%, respectively. The newer legal database providers, Fastcase, Google Scholar, Casetext, and Ravel, were also clustered together at a lower relevance rate, returning approximately 40% relevant results.

Professor Mart reminds us that thorough legal research has always involved redundancy. We already know that different search terms give us new results to investigate. She recommends using multiple resources with multiple searches, and calls for more accountability by legal database providers.

We cannot change what the legal database providers have already done. We do have control over the thoroughness of our research and our search strategies. -CCE

Antonio Gidi, law professor at Syracuse University College of Law, recently updated Weihofen’s Legal Writing Style. Professor Gidi is a strong proponent of concise and persuasive legal writing. A preview of the book is available at the SSRN link above; just click on “Download This Paper.” Plenty for the novice legal writer and good tips for those looking to sharpen their legal writing skills. -CCE

Do you prefer full or left justification? In the legal writing community, this is a serious debate. It ranks up there with whether citations belong in the text or in a footnote, but not quite as serious as whether you follow the rule of one or two spaces after a period.

The point is whether your choice makes your writing easier to read and understand, which is, after all, the legal writing holy grail. -CCE

Over the last several years, many of the federal rules have undergone a process known as restyling, designed to make them simpler, more understandable and easier to read and use. With the exception of the rules in Part 8, which were recently revised, the Rules of Bankruptcy Procedure have not been restyled, partially in deference to their close linkage to provisions of the Bankruptcy Code.

The Advisory Committee on Bankruptcy Rules is now considering whether to recommend that the Bankruptcy Rules undergo the restyling process and is soliciting input from the public. With the assistance of the Federal Judicial Center, the Advisory Committee’s Restyling Subcommittee has created a short survey seeking opinions and comments on the benefits and drawbacks of restyling.

If you or your organization would like to provide feedback, please complete the survey (link is external) by June 15, 2018. We encourage you to contribute your views.

The survey results will be reviewed by the Restyling Subcommittee and given careful consideration as it decides what recommendation to make to the Advisory Committee.